Ashley Metters v National Automotive Group Pty Ltd
[2024] FWC 1061
•23 APRIL 2024
| [2024] FWC 1061 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ashley Metters
v
National Automotive Group Pty Ltd
(U2024/819)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 23 APRIL 2024 |
Unfair dismissal application – no appearance – no merit – rebuke of applicant’s complaint about Chinese being spoken in the workplace – application dismissed
Earlier today I dismissed an application made by Ashley Metters under s 394 of the Fair Work Act 2009 (Act) against his former employer, National Automotive Group Pty Ltd (company). The following are my reasons.
It is unclear why Mr Metters claimed that his dismissal was unfair. The scanty content of his F2 application was not coherent. It recounted certain details of the employment, including disagreements with the company’s owner, Jiacheng (Bill) Xu, about annual leave payments and a bonus. It asserted that Mr Xu had asked Mr Metters to lie in court about a crash repair job, without providing any details. Mr Metters also stated that the worst thing about his job was that Mr Xu and another worker spoke Chinese all day long.
The only clear thing about Mr Metters’ unfair dismissal application was the termination letter that was attached to it. In it, Mr Xu stated:
‘The decision has been made due to the following reasons:
-go out often during working hours with no scheduled meeting with clients outside the company
-often attend workplace late and leave workplace earlier
-harass employer
-express negative comments about the company and harm the company’s reputation
-smoke in the workshop and breach workplace health and safety conduct
-unacceptable language in the workplace.’
Mr Metters failed to comply with my directions of 4 March 2024 which required him to file an outline of argument, statements of evidence, and a document list. He was sent a reminder, which he ignored. At a non-compliance hearing on 26 March 2024, Mr Metters said that he had overlooked the deadline and wanted to proceed with his application. I allowed him until 2 April 2024 to file the required materials. On 2 April 2024, Mr Metters lodged four photographed pages from the Commission’s outline of argument form with some handwritten notes. He stated that ‘this was all because I would not go ahead with court regarding a car accident with my ute … in which it’s a fraud motor claim with RACV and when I asked about my annual leave and sick leave but mostly fraud’. He also stated: ‘7 years of working for Bill there are so many things I can say to the right Dept.’
Mr Metters failed to attend the determinative conference on 23 April 2024. The notice of listing had advised the parties that s 600 of the Act allows the Commission to determine a matter in the absence of a person who was required to attend before it.
Mr Xu gave evidence that he dismissed Mr Metters with immediate effect for the reasons referred to in the termination letter. He said that he had personally seen Mr Metters leaving the workplace without appointments, arriving for work late and leaving early, and smoking in the workplace. He said that he had heard Mr Metters using foul language in the workplace and that every sentence started with the ‘f’ word. He also said that Mr Metters had directed unacceptable language towards him, and submitted copies of texts he had received from Mr Metters, including one from 23 December 2023 in which he called Mr Xu a ‘greedy liar cunt’. Another on the same day told Mr Xu, menacingly, that there was still no money in his account and that this was Mr Xu’s last chance, otherwise he would ‘get to know some of [his] acquaintances’. Mr Xu said that his company employed only 4 people at the time of Mr Metters’ dismissal and did not have any related entities. He said that the trigger for his decision to dismiss Mr Metters had been the abusive texts that he had received from Mr Metters.
Consideration
Mr Metters utterly failed to explain why his dismissal should be considered unfair. On the other hand, Mr Xu’s explanation of his reasons for dismissing Mr Metters was perfectly clear and sensible. Mr Xu was a credible witness. I accept his evidence about Mr Metters’ behaviour and why he decided to dismiss Mr Metters. I find that the company was a small business at the time of the dismissal, because it employed fewer than 15 people. It had no associated entities. The Small Business Fair Dismissal Code (Code) therefore applied. In my opinion the company complied with the Code in relation to the dismissal (see s 388). The Code’s first limb states that it is fair for an employer to dismiss an employee without notice or warning when the employer ‘believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal’. I find that Mr Xu had reasonable grounds for believing that Mr Metters’ conduct was sufficiently serious to justify immediate dismissal. The last straw for Mr Xu were the texts he received from Mr Metters, which included unacceptable language, as referred to in the termination letter. A dismissal that is consistent with the Code cannot be unfair (see s 385).
Even if the company had not complied with the Code, I would have concluded that the dismissal was not unfair with reference to s 387. Mr Xu had valid reasons to dismiss Mr Metters (s 387(a)), constituted by each of the matters referred to in the termination letter. There was no evidence about whether Mr Metters was notified of these reasons before the dismissal or had an opportunity to respond to them (ss 387(b) and (c)), and I conclude that these things did not occur, but this is outweighed by the gravity of Mr Metters’ conduct. There was no refusal by the employer to allow a support person to attend meetings relating to the dismissal (s 387(d)). There is no indication of past warnings for poor performance (s 387(e)), however I attribute this little weight because the reasons for dismissal related substantially to conduct. The business is a small one, and this likely had an adverse impact on the termination processes or lack thereof (s 387(f)). There is no evidence as to whether the company had human resources advisers (s 387(g)). As to other relevant matters (s 387(h)), I cannot identify any factors that are indicative of the dismissal being unfair. Taking into account the matters in s 387, I would conclude that the dismissal was not remotely harsh, unjust or unreasonable.
In conclusion, the dismissal was not unfair because it was consistent with the Code. Even if the employer had not complied with the Code, the dismissal would not have been unfair with reference to the considerations in s 387 of the Act. The application is dismissed.
Finally, Mr Metters deserves a stern rebuke for his remark that the worst thing about his job was listening to the manager and the receptionist speak Chinese. Languages other than English should be valued in the workplace. Instead of complaining about listening to Chinese, Mr Metters could have tried to learn some of his employer’s language, as a way of showing respect and gratitude to Mr Xu, who after all was a small business owner using his initiative to provide employment and a livelihood to his workers. But instead of offering Mr Xu a humble ‘xie xie’, as he ought to have done, Mr Metters lodged a thoroughly unmeritorious claim and then failed to prosecute or discontinue it. This too deserves censure. Mr Xu has been diverted from running his small business for no good reason. He represented himself, and has no costs to claim against Mr Metters under the Act.
DEPUTY PRESIDENT
Appearances:
No appearance for the applicant
Jiacheng Xu for the respondent
Hearing details:
2024
Melbourne
23 April
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